Louisville & N.R. Co. v. Hall

• Decision Date: 09 April 1889
• Citation: 87 Ala. 708,6 So. 277
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. HALL.

6 So. 277

87 Ala. 708

LOUISVILLE & N. R. CO. v. HALL.

Supreme Court of Alabama

April 9, 1889

Appeal from city court of Mobile; O. J. SEMMES, Judge.

This action was brought by William G. Hall, a minor suing by his next friend, against the Louisville & Nashville Railroad Company, to recover damages for personal injuries sustained by plaintiff while in the employment of defendant as brakeman, and was commenced February 28, 1888. The accident occurred on the night of October 26, 1887, when plaintiff while in the discharge of his duties as brakeman on one of defendant's freight trains, being on the step of one of the cars, was struck by the timbers of a bridge overhead which spanned a public road near Greenville in Butler county and was thrown to the ground, and was so badly injured that it became necessary to amputate one of his feet. The cause was tried on issue joined on the pleas of not guilty and contributory negligence, and resulted in a verdict and judgment for plaintiff for $20,000.

The complaint contained 11 counts, but a demurrer was sustained to the tenth and eleventh counts. The first count alleged that at and before the injury, defendant was, as a common carrier, operating a railroad between Montgomery and Mobile which passed through the corporate limits of the town of Greenville, and crossed a public street or road a short distance south of its depot in the town; that defendant's charter provided that the company, "in the construction of said railroad, shall not in any manner obstruct any public road now established, but shall provide convenient passage for travel over said road;" that the railroad "crossed said public road south of Greenville, and the passage provided for travel over said road is by a bridge that crosses above said railroad track;" that defendant's freight trains "are so arranged that they are stopped by means of brakes, which can only be managed by persons on the top of the cars," and for this purpose brakemen are employed by it, whose duty it is to stand and walk on the top of said trains, and to apply the brakes when signaled to do so; that said bridge across the public road "was, with gross negligence and reckless disregard of the lives of defendant's employés improperly and dangerously constructed and maintained, in this: that it was constructed and maintained at such a height above the railroad track that there was danger of the brakemen on freight trains being struck by said bridge, and injured or killed;" that plaintiff, while in the discharge of his duties as brakeman on the top of a freight train, on October 26, 1887, was struck by the bridge overhead, knocked to the ground, and seriously injured as above stated; that he was at the time ignorant of the dangerous construction and condition of the bridge; and that said dangerous construction and condition at the time of said injuries "either had not been discovered by the defendant, or else had not been remedied owing to the negligence of the defendant, or of some person in the defendant's service intrusted by it with the duty of seeing that the ways, works, machinery, or plant of said road was in proper condition."

The second count alleged, in the same words as the first, that defendant was engaged as a common carrier in operating a railroad between Montgomery and Mobile, "which passes through the corporate limits of the town of Greenville, and crosses a public street or road a short distance south of defendant's depot there, by passing under the same; that the passage provided for travel over said road is by a bridge that crosses above said railroad track;" the dangerous construction of the bridge, plaintiff's ignorance of its dangerous construction, etc., in substance the same as the first count, except in omitting any averment as to the provision in defendant's charter.

The third count was the same in substance as to the averments as to the construction and condition of the bridge, and the injuries suffered by plaintiff while in the discharge of his duties as brakeman; but it did not allege his ignorance of its dangerous construction, nor that the defect had not been discovered or remedied on account of negligence on the part of defendant, or of some person in its employment charged with the duty.

The fourth count was substantially the same, but with less particularity in its averments of details.

The fifth count alleged that when the train approached the bridge, the engineer or other person having control of the running of the engine and train did not blow the whistle nor ring the bell one-fourth of a mile before reaching the public road crossing; and that plaintiff had no notice and did not know that the train was approaching said crossing.

The sixth count alleged that defendant's railroad "passes through the corporate limits of Greenville, and crosses a public street or road a short distance south of Greenville, under a bridge that crosses above said railroad track;" that the bridge was of such a height as to be dangerous to any person standing or walking on the top of a train, as brakemen were required to do; that this fact was unknown to plaintiff, who, in the discharge of his duties as brakeman, had got down to examine a "hot box," and, when he climbed up again, the train having suddenly started, he was struck by the bridge overhead as he was walking to his position.

The seventh count alleged that defendant, on the 26th of October, 1887, was operating a railroad between Montgomery and Mobile; that the ways, works, machinery, or plant connected with or used in connection with said railroad "was defective in this: that a bridge over said railroad, a short distance below defendant's depot in Greenville, was negligently constructed, so as to be dangerous to persons employed by defendant as brakemen on freight-cars;" that plaintiff was employed as a brakeman on a freight train, and while in the discharge of his duties on that day was injured "by reason of said defective condition of said ways," etc.

The eighth count alleged that on the 26th of October, 1887, defendant was operating a railroad between Mobile and Montgomery, "and with one of its cars negligently run over and injured plaintiff."

The ninth count alleged that, on said 26th of October, 1887, plaintiff was a brakeman on top of a freight train on defendant's railroad, and was "by the negligence of the defendant violently brought into contact with a low bridge, which cut his head, knocked him senseless from the train," etc.

As already stated, demurrers were sustained to the tenth and eleventh counts, and they require no special notice.

Defendant demurred to each count of the complaint, assigning special causes of demurrer, numbered consecutively from 1 to 31. The grounds specially assigned to the first count were: (1) That said count fails to show that plaintiff exercised reasonable and proper care in the performance of his duties on the train "at the time of the accident alleged to have resulted in his death;" (2) that it fails to show a violation of any duty legally owing by defendant to plaintiff in the premises (3) that it fails to show any negligence on the part of defendant; (4) that it fails to show that plaintiff "had no such knowledge of the existence of said low bridge as would have enabled him, by due diligence on his part, to have avoided the alleged injury and damages;" (5) that it "shows that said alleged danger, due to the construction of said bridge, was a risk incident to plaintiff's employment, for which, when resulting in injury, no action lies;" (6) that it shows "that the alleged injury and death were caused by contact of plaintiff with said bridge while in the performance of his duties as brakeman, and fails to show that he was in the exercise of due care and diligence to avoid said accident, or that it could not have been avoided by due care and diligence on his part;" (7) that it fails to show any duty on the part of defendant with reference to said bridge, whereby it became defendant's duty to maintain said bridge at any particular elevation; (8) that it shows said bridge was a public road bridge, and not a bridge constituting part of defendant's track or road. The same grounds of demurrer were assigned to the second count, and also (10) that it does not show why or how it became necessary for plaintiff to stand or walk on the top of the train, while it was passing under said bridge. The same grounds of demurrer were assigned to the third count as to the first, second, and fourth counts, with the additional assignment (13) that said fourth count does not allege that said bridge was constructed or maintained by defendant. To the fifth count the same grounds of demurrer were assigned as to the preceding counts, and also (15) that it fails to show how or why it became defendant's duty to notify plaintiff of the approach to said bridge; (16) that it shows that said alleged neglect was the neglect of a fellow-servant of plaintiff, for whose acts in the premises defendant is not liable to plaintiff; (17) that it fails to show any duty on the part of defendant, requiring the engineer or conductor to blow the whistle or ring the bell on approaching the bridge. To the sixth count the same grounds of demurrer were assigned as to the first, second, and fourth, and also (19) that said count shows that plaintiff himself was guilty of proximate contributory negligence. To the seventh count the same grounds of demurrer were assigned as to the first, second, and fourth, and also to the eighth count, with the additional assignments (21) that it does not show with sufficient particularity the nature of the neglect, or the circumstances under which plaintiff was injured as alleged; and (22) that it fails to allege or to show the particular duty which ...